Fite v. Shamrock Foods Company ( 2021 )

1 SHTEACNTO SR. M RA. MLLAIRSOTINN (ECZa l(.C Satla. tSe tBataer BNaor. N1o84. 2109613) 36) DANIEL C. KELLER (Cal. State Bar No 332576) 2 MALLISON & MARTINEZ 1939 Harrison Street, Suite 730 3 Oakland, California 94612-3547 Telephone: (510) 832-9999 4 Facsimile: (510) 832-1101 stanm@themmlawfirm.com 5 hectorm@themmlawfirm.com dkeller@themmlawfirm.com 6 Attorneys for Plaintiff 7 GLENN FITE 8 ANDREW J. SOMMER (Cal. State Bar No. 192844) MEGAN S. SHAKED (Cal. State Bar No. 274174) 9 CONN MACIEL CAREY LLP 870 Market Street, Suite 1151 10 San Francisco, California 94102 Telephone: (415) 268-8894 11 Facsimile: (415) 268-8889 asommer@connmaciel.com 12 mshaked@connmaciel.com 13 Attorneys for Defendant, SHAMROCK FOODS COMPANY 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO DIVISION 16 GLENN FITE, individually, and CASE NO. 2:21-CV-00023-JAM-KJN 17 acting on behalf of a class of similarly situated employees, Before the Honorable John A. Mendez 18 Plaintiff, STIPULATED PROTECTIVE 19 ORDER v. 20 SHAMROCK FOODS COMPANY; 21 an Arizona corporation, and DOES 1 Trial Set: October 3, 2022 to 50, inclusive, 22 Defendants. 23 24 1. 1.1. PURPOSES AND LIMITATIONS 25 Discovery in this action is likely to involve production of confidential, 26 proprietary or private information for which special protection from public 27 disclosure and from use for any purpose other than prosecuting this litigation may 1 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this 2 Order does not confer blanket protections on all disclosures or responses to 3 discovery and that the protection it affords from public disclosure and use extends 4 only to the limited information or items that are entitled to confidential treatment 5 under the applicable legal principles. The parties further acknowledge, as set forth 6 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 7 file confidential information under seal; Local Rule 141 sets forth the procedures 8 that must be followed and the standards that will be applied when a party seeks 9 permission from the court to file material under seal. 10 1.2. GOOD CAUSE STATEMENT 11 This action is likely to involve trade secrets, confidential, and proprietary 12 information for which special protection from public disclosure and from use for 13 any purpose other than prosecution of this action is warranted. Such confidential 14 and proprietary materials and information consist of, among other things, 15 confidential business or financial information, information regarding confidential 16 business practices, or other confidential research, development, or commercial 17 information (including information implicating privacy rights of employees and 18 other third parties), information otherwise generally unavailable to the public, or 19 which may be privileged or otherwise protected from disclosure under state or 20 federal statutes, court rules, case decisions, or common law. Accordingly, to 21 expedite the flow of information, to facilitate the prompt resolution of disputes over 22 confidentiality of discovery materials, to adequately protect information the parties 23 are entitled to keep confidential, to ensure that the parties are permitted reasonable 24 necessary uses of such material in preparation for and in the conduct of trial, to 25 address their handling at the end of the litigation, and serve the ends of justice, a 26 protective order for such information is justified in this matter. It is the intent of the 27 parties that information will not be designated as confidential for tactical reasons 1 and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it 2 should not be part of the public record of this case. 3 2. DEFINITIONS 4 2.1 Action: This pending class action in this Court entitled, Glenn Fite v. 5 Shamrock Foods Company, an Arizona corporation, and DOES 1 to 50, Case 6 No. 2:21-CV-00023-JAM-KJN. 7 2.2 Challenging Party: a Party or Non-Party that challenges the 8 designation of information or items under this Order. 9 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 10 how it is generated, stored or maintained) or tangible things that qualify for 11 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 12 the Good Cause Statement. 13 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 14 their support staff). 15 2.5 Designating Party: a Party or Non-Party that designates information or 16 items that it produces in disclosures or in responses to discovery as 17 “CONFIDENTIAL.” 18 2.6 Disclosure or Discovery Material: all items or information, regardless 19 of the medium or manner in which it is generated, stored, or maintained (including, 20 among other things, testimony, transcripts, and tangible things), that are produced 21 or generated in disclosures or responses to discovery in this matter. 22 2.7 Expert: a person with specialized knowledge or experience in a matter 23 pertinent to the litigation who has been retained by a Party or its counsel to serve as 24 an expert witness or as a consultant in this Action. 25 2.8 House Counsel: attorneys who are employees of a corporate party to 26 this Action. House Counsel does not include Outside Counsel of Record or any 27 other outside counsel. 1 2.9 Non-Party: any natural person, partnership, corporation, association or other legal entity not named as a Party to this action. 2 2.10 Outside Counsel of Record: attorneys who are not employees of a 3 party to this Action but are retained to represent a party to this Action and have 4 appeared in this Action on behalf of that party. 5 2.11 Party: any natural person, partnership, corporation, association or other 6 legal entity named as a party to this Action. 7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 8 Discovery Material in this Action. 9 2.13 Professional Vendors: persons or entities that provide litigation 10 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 11 demonstrations, and organizing, storing, or retrieving data in any form or medium) 12 and their employees and subcontractors. 13 2.14 Protected Material: any Disclosure or Discovery Material that is 14 designated as “CONFIDENTIAL.” 15 2.15 Receiving Party: a Party that receives Disclosure or Discovery 16 Material from a Producing Party. 17 3. SCOPE 18 The protections conferred by this Stipulation and Order cover not only 19 Protected Material (as defined above), but also (1) any information copied or 20 extracted from Protected Material; (2) all copies, excerpts, summaries, or 21 compilations of Protected Material; and (3) any testimony, conversations, or 22 presentations by Parties or their Counsel that might reveal Protected Material. 23 Any use of Protected Material at trial shall be governed by the orders of the 24 trial judge. This Order does not govern the use of Protected Material at trial. 25 4. DURATION 26 Even after final disposition of this litigation, the confidentiality obligations 27 imposed by this Order shall remain in effect until a Designating Party agrees 1 otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this Action, 2 with or without prejudice; and (2) final judgment herein after the completion and 3 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 4 including the time limits for filing any motions or applications for extension of time 5 pursuant to applicable law. 6 5. DESIGNATING PROTECTED MATERIAL 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. 8 Each Party or Non-Party that designates information or items for protection 9 under this Order must take care to limit any such designation to specific material 10 that qualifies under the appropriate standards. The Designating Party must 11 designate for protection only those parts of material, documents, items or oral or 12 written communications that qualify so that other portions of the material, 13 documents, items or communications for which protection is not warranted are not 14 swept unjustifiably within the ambit of this Order. 15 Mass, indiscriminate or routinized designations are prohibited. Designations 16 that are shown to be clearly unjustified or that have been made for an improper 17 purpose (e.g., to unnecessarily encumber the case development process or to 18 impose unnecessary expenses and burdens on other parties) may expose the 19 Designating Party to sanctions. 20 If it comes to a Designating Party’s attention that information or items that it 21 designated for protection do not qualify for protection, that Designating Party must 22 promptly notify all other Parties that it is withdrawing the inapplicable designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in 24 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 25 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 26 under this Order must be clearly so designated before the material is disclosed or 27 produced. 1 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 2 documents, but excluding transcripts of depositions or other pretrial or trial 3 proceedings), that the Producing Party affix at a minimum, the legend 4 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 5 contains protected material. If only a portion of the material on a page qualifies for 6 protection, the Producing Party also must clearly identify the protected portion(s) 7 (e.g., by making appropriate markings in the margins). 8 A Party or Non-Party that makes original documents available for inspection 9 need not designate them for protection until after the inspecting Party has indicated 10 which documents it would like copied and produced. During the inspection and 11 before the designation, all of the material made available for inspection shall be 12 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 13 documents it wants copied and produced, the Producing Party must determine 14 which documents, or portions thereof, qualify for protection under this Order. Then, 15 before producing the specified documents, the Producing Party must affix the 16 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 17 portion of the material on a page qualifies for protection, the Producing Party also 18 must clearly identify the protected portion(s) (e.g., by making appropriate markings 19 in the margins). 20 (b) for testimony given in depositions that the Designating Party 21 identifies the Disclosure or Discovery Material on the record, within 30 days of 22 receipt of the deposition transcript all protected testimony. 23 (c) for information produced in some form other than documentary and 24 for any other tangible items, that the Producing Party affix in a prominent place on 25 the exterior of the container or containers in which the information is stored the 26 legend “CONFIDENTIAL.” If only a portion or portions of the information 27 warrants protection, the Producing Party, to the extent practicable, shall identify the 1 protected portion(s). 5.3 Inadvertent Failures to Designate. If timely corrected upon discovery, 2 an inadvertent failure to designate qualified information or items does not, standing 3 alone, waive the Designating Party’s right to secure protection under this Order for 4 such material. Upon timely correction of a designation, the Receiving Party must 5 make reasonable efforts to assure that the material is treated in accordance with the 6 provisions of this Order. 7 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 8 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 9 designation of confidentiality at any time that is consistent with the Court’s 10 Scheduling Order. 11 6.2 Meet and Confer. The Challenging Party shall meet and confer with 12 the Designating Party before filing a motion with the court. 13 6.3 The burden of persuasion in any such challenge proceeding shall be on 14 the Designating Party. Frivolous challenges, and those made for an improper 15 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 16 parties) may expose the Challenging Party to sanctions. Unless the Designating 17 Party has waived or withdrawn the confidentiality designation, all parties shall 18 continue to afford the material in question the level of protection to which it is 19 entitled under the Producing Party’s designation until the Court rules on the 20 challenge. 21 7. ACCESS TO AND USE OF PROTECTED MATERIAL 22 7.1 Basic Principles. A Receiving Party may use Protected Material that is 23 disclosed or produced by another Party or by a Non-Party in connection with this 24 Action only for prosecuting, defending or attempting to settle this Action. Such 25 Protected Material may be disclosed only to the categories of persons and under the 26 conditions described in this Order. When the Action has been terminated, a 27 Receiving Party must comply with the provisions of section 13 below (FINAL 1 DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 2 location and in a secure manner that ensures that access is limited to the persons 3 authorized under this Order. 4 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 5 otherwise ordered by the court or permitted in writing by the Designating Party, a 6 Receiving Party may disclose any information or item designated 7 “CONFIDENTIAL” only to: 8 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 9 well as employees of said Outside Counsel of Record to whom it is reasonably 10 necessary to disclose the information for this Action; 11 (b) Where the Receiving Party is a partnership, corporation, 12 association or other legal entity, the officers, directors, and employees (including 13 House Counsel) of that Receiving Party to whom disclosure is reasonably necessary 14 for this Action; 15 (c) Experts (as defined in this Order) of the Receiving Party to whom 16 disclosure is reasonably necessary for this Action and who have signed the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (d) the court and its personnel; 19 (e) engaged court reporters and their staff; 20 (f) engaged professional jury or trial consultants, mock jurors, and 21 Professional Vendors to whom disclosure is reasonably necessary for this Action 22 and who have signed the “Acknowledgment and Agreement to Be Bound” 23 (Exhibit A); 24 (g) an individual who authored or has personal knowledge of that 25 information provided that individual (1) has signed the form attached as Exhibit A 26 hereto, and (2) is not permitted to keep any confidential information, unless 27 otherwise agreed by the Designating Party or ordered by the court; 1 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonably necessary provided: (1) the deposing 2 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 3 they will not be permitted to keep any confidential information, unless otherwise 4 agreed by the Designating Party or ordered by the court. Pages of transcribed 5 deposition testimony or exhibits to depositions that reveal Protected Material may 6 be separately bound by the court reporter and may not be disclosed to anyone 7 except as permitted under this Stipulated Protective Order; and 8 (i) any mediator or settlement officer, and their supporting personnel, 9 mutually agreed upon by any of the parties engaged in settlement discussions. 10 7.3 Aggrieved Employee Information. Contact information and any other 11 personal identifying information for aggrieved employees pursuant to Plaintiff’s 12 Private Attorneys General Act claims shall only be used for purposes of this action, 13 and for no other reason. 14 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 15 IN OTHER LITIGATION 16 If a Party is served with a subpoena or a court order issued in other litigation 17 that compels disclosure of any information or items designated in this Action as 18 “CONFIDENTIAL,” that Party must: 19 (a) promptly notify in writing the Designating Party. Such notification shall 20 include a copy of the subpoena or court order; 21 (b) promptly notify in writing the party who caused the subpoena or order to 22 issue in the other litigation that some or all of the material covered by the subpoena 23 or order is subject to this Protective Order. Such notification shall include a copy of 24 this Stipulated Protective Order; and 25 (c) cooperate with respect to all reasonable procedures sought to be pursued 26 by the Designating Party whose Protected Material may be affected. 27 If the Designating Party timely seeks a protective order, the Party served with 1 the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL” before a determination by the court from which the 2 subpoena or order issued, unless the Party has obtained the Designating Party’s 3 permission. The Designating Party shall bear the burden and expense of seeking 4 protection in that court of its confidential material and nothing in these provisions 5 should be construed as authorizing or encouraging a Receiving Party in this Action 6 to disobey a lawful directive from another court. 7 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 8 PRODUCED IN THIS LITIGATION 9 (a) The terms of this Order are applicable to information produced by a Non- 10 Party in this Action and designated as “CONFIDENTIAL.” Such information 11 produced by Non-Parties in connection with this litigation is protected by the 12 remedies and relief provided by this Order. Nothing in these provisions should be 13 construed as prohibiting a Non-Party from seeking additional protections. 14 (b) In the event that a Party is required, by a valid discovery request, to 15 produce a Non-Party’s confidential information in its possession, and the Party is 16 subject to an agreement with the Non-Party not to produce the Non-Party’s 17 confidential information, then the Party shall: 18 (1) promptly notify in writing the Requesting Party and the Non-Party 19 that some or all of the information requested is subject to a confidentiality 20 agreement with a Non-Party; 21 (2) promptly provide the Non-Party with a copy of the Stipulated 22 Protective Order in this Action, the relevant discovery request(s), and a reasonably 23 specific description of the information requested; and 24 (3) make the information requested available for inspection by the 25 Non-Party, if requested. 26 (c) If the Non-Party fails to seek a protective order from this court within 14 27 days of receiving the notice and accompanying information, the Receiving Party 1 may produce the Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall 2 not produce any information in its possession or control that is subject to the 3 confidentiality agreement with the Non-Party before a determination by the court. 4 Absent a court order to the contrary, the Non-Party shall bear the burden and 5 expense of seeking protection in this court of its Protected Material. 6 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 7 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 8 Protected Material to any person or in any circumstance not authorized under this 9 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 10 writing the Designating Party of the unauthorized disclosures, (b) use its best 11 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 12 person or persons to whom unauthorized disclosures were made of all the terms of 13 this Order, and (d) request such person or persons to execute the “Acknowledgment 14 and Agreement to Be Bound” that is attached hereto as Exhibit A. 15 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 16 PROTECTED MATERIAL 17 When a Producing Party gives notice to Receiving Parties that certain 18 inadvertently produced material is subject to a claim of privilege or other 19 protection, the obligations of the Receiving Parties are those set forth in Federal 20 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 21 whatever procedure may be established in an e-discovery order that provides for 22 production without prior privilege review. Pursuant to Federal Rule of Evidence 23 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 24 of a communication or information covered by the attorney-client privilege or work 25 product protection, the parties may incorporate their agreement in the stipulated 26 protective order submitted to the court. 27 1 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 2 person to seek its modification by the Court in the future. 3 12.2 Right to Assert Other Objections. By stipulating to the entry of this 4 Protective Order, no Party waives any right it otherwise would have to object to 5 disclosing or producing any information or item on any ground not addressed in 6 this Stipulated Protective Order. Similarly, no Party waives any right to object on 7 any ground to use in evidence of any of the material covered by this Protective 8 Order. 9 12.3 Filing Protected Material. A Party that seeks to file under seal any 10 Protected Material must comply with Civil Rule 141. Protected Material may only 11 be filed under seal pursuant to a court order authorizing the sealing of the specific 12 Protected Material at issue. If a Party’s request to file Protected Material under seal 13 is denied by the court, then the Receiving Party may file the information in the 14 public record unless otherwise instructed by the court. 15 13. FINAL DISPOSITION 16 After the final disposition of this Action, as defined in Section 4, within 60 17 days of a written request by the Designating Party, each Receiving Party must 18 return all Protected Material to the Producing Party or destroy such material. As 19 used in this subdivision, “all Protected Material” includes all copies, abstracts, 20 compilations, summaries, and any other format reproducing or capturing any of the 21 Protected Material. Whether the Protected Material is returned or destroyed, the 22 Receiving Party must submit a written certification to the Producing Party (and, if 23 not the same person or entity, to the Designating Party) by the 60 day deadline that 24 (1) identifies (by category, where appropriate) all the Protected Material that was 25 returned or destroyed and (2) affirms that the Receiving Party has not retained any 26 copies, abstracts, compilations, summaries or any other format reproducing or 27 capturing any of the Protected Material. Notwithstanding this provision, Counsel 1 are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition 2 and trial exhibits, expert reports, attorney work product, and consultant and expert 3 work product, even if such materials contain Protected Material. Any such archival 4 copies that contain or constitute Protected Material remain subject to this Protective 5 Order as set forth in Section 4 (DURATION). 6 14. REMEDIES 7 Any violation of this Order may be punished by appropriate measures 8 including, without limitation, contempt proceedings and/or monetary sanctions. 9 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 10 DATED: November 29, 2021 LAUBY MANKIN & LAUBY, LLP 11 12 By : 13 Stan S. Mallison 14 Hector R. Martinez Liliana Garcia 15 Daniel Keller 16 Attorney for Plaintiff GLENN FITE 17 18 DATED: November 29, 2021 CONN MACIEL CAREY LLP 19 20 By 21 : Andrew J. Sommer Megan S. Shaked 22 Attorneys for Defendant 23 SHAMROCK FOODS COMPANY 24 25 ORDER The court has reviewed the parties’ stipulated protective order. (See ECF 26 No. 24). The stipulation lists categories of information sought to be protected (see 27 1 . . . we Section 1.2 above), and otherwise comports with the relevant authorities and the 2 . court’s applicable local rule. See L.R. 141.1(c);! see also Phillips ex rel. Estates of 3 . Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (requiring a 4 . . . showing of good cause for protective orders). The court APPROVES the protective 5 . . . . order subject to the following clarification. The Local Rules state that once an action is closed, “unless otherwise ordered, the court will not retain jurisdiction 7 . . . over enforcement of the terms of any protective order filed in that action.” L.R. 141.1(f). Courts in the district generally do not agree to retain jurisdiction for 9 . . . disputes concerning protective orders after closure of the case. See, e.g., MD 10 . Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., Feb. 03, 2017). 1] . Coke ge ge . . . Thus, the court will not retain jurisdiction over this protective order once the case is 12 closed. 13 Dated: November 29, 2021 14 —-f’ \ KENDALL J. □□ 16 UNITED STATES MAGISTRATE JUDGE 17 fite.23 18 19 20 21 22 23 24 ' The Court’s Local Rules instruct the parties, when requesting a protective order, to include in their submission: (1) A description of the types of information eligible for protection under the order, with the 25 description provided in general terms sufficient to reveal the nature of the information (e.g., customer list, formula for soda, diary of a troubled child); (2) A showing of particularized need for protection as to each category of information proposed 26 to be covered by the order; and (3) A showing as to why the need for protection should be addressed by a court order, as opposed 27 to a private agreement between or among the parties. 28 Local Rule 141.1(c). 1 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 I, _____________________________ [print or type full name], of 3 _________________ [print or type full address], declare under penalty of perjury 4 that I have read in its entirety and understand the Stipulated Protective Order that 5 was issued by the United States District Court for the Eastern District of California 6 on [date] in the case of Glenn Fite v. Shamrock Foods Company, an Arizona 7 corporation, and DOES 1 to 50, Case No. 2:21-CV-00023-JAM-KJN. I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order 9 and I understand and acknowledge that failure to so comply could expose me to 10 sanctions and punishment in the nature of contempt. I solemnly promise that I will 11 not disclose in any manner any information or item that is subject to this Stipulated 12 Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for 15 the Eastern District of California for enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of 17 this action. I hereby appoint __________________________ [print or type full 18 name] of _______________________________________ [print or type full 19 address and telephone number] as my California agent for service of process in 20 connection with this action or any proceedings related to enforcement of this 21 Stipulated Protective Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: _______________________________ 25 Signature: __________________________________ 26 27